Re Ali - [2022] VSC 219

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0095

IN THE MATTER of the Bail Act 1977

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IN THE MATTER of an Application for Bail by Serhan ALI

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JUDGE:	Tinney J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2022
DATE OF JUDGMENT:	3 May 2022
CASE MAY BE CITED AS:	Re Ali
MEDIUM NEUTRAL CITATION:	[2022] VSC 219

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CRIMINAL LAW – Bail – 28 year old applicant – First time in custody – Alleged family violence offending against former partner – On bail at time – Further alleged violent offending against members of Victoria Police serving a notice on relative of applicant - Exceptional circumstances test applicable – No criminal history – No bail history – Contested hearing not likely until late 2022 – Time on remand may exceed ultimate sentence if convicted – Supportive family and stable residence – Family violence intervention order in place – Exceptional circumstances made out – Unacceptable risk not established – Bail granted with conditions – Bail Act 1977 ss 1B, 3AAA, 4, 4A, 4D, 4E, 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Fitzpatrick	Marcevski Lawyers
For the Respondent	Mr P Murphy, solicitor advocate	Victoria Police Legal Practice Group

HIS HONOUR:

Introduction

The applicant applies for bail on a number of charges laid against him by three separate informants. The charges are:

Senior Constable Sean Pringle – offence and charge date 18 July 2021 (‘Pringle matter’):

· Escape police custody.

Constable Alana Preston – offence date 2 October 2021; charge date 28 December 2021 (‘Preston matters’):

· Recklessly cause injury.

· Unlawful assault.

· Contravene interim family violence intervention order (‘FVIO’) (two charges).

· Criminal damage.

· Commit indictable offence while on bail.

Senior Constable Manpreet Nanuan – offence and charge date 16 April 2022 (‘Nanuan matters’):

· Criminal damage.

· Threat to kill.

· Procure intimidation of law enforcement officer.

· Commit indictable offence while on bail.

· Assault emergency worker on duty (two charges).

· Discharge missile to endanger persons.

At the time of the offending alleged to have occurred on 16 April 2022, the appellant was on bail for the two earlier sets of charges.

It is agreed between the parties that the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. This is because the applicant is accused of a Schedule 2 offence under the Bail Act 1977 (‘the Act’) which is alleged to have been committed while he was on bail for a Schedule 2 offence.

Procedural history

The applicant was arrested on 16 April 2022 on the Nanuan matters and remanded in custody. He was refused bail in Melbourne Magistrates’ Court on the basis that he had failed to show exceptional circumstances and posed an unacceptable risk.

The applicant’s bail in the other two sets of charges was revoked on this date.

Summary of alleged offending

Informant Nanuan matters

At 1.27am on 16 April 2022,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Ali

Details

AGLC: Re Ali [2022] VSC 219
Case: [2022] VSC 219
Decision Date: 3 May 2022

CaseChat Overview and Summary

The case of Re Ali involved the 28-year-old applicant who was seeking bail from the court. The applicant, who had no prior criminal history and was currently in custody for the first time, faced allegations of family violence against his former partner. Additionally, there were further allegations of violent conduct against members of Victoria Police who were serving a notice on a relative of the applicant. The application was made under the Bail Act 1977, with the applicant's counsel arguing that the exceptional circumstances test was applicable.

The primary legal issues before the court were whether the applicant met the criteria for bail under the Bail Act 1977, specifically considering the exceptional circumstances test, and whether there was an unacceptable risk to the community if bail were granted. The court needed to weigh the applicant's lack of criminal history, the nature and circumstances of the alleged offences, the timing of the contested hearing, and the potential length of time the applicant might spend on remand. Additionally, the court considered the applicant's supportive family network and stable residence, as well as the existing family violence intervention order.

The court found that the exceptional circumstances test was indeed applicable due to the significant delay in the contested hearing, which was not expected to commence until late 2022. The applicant's lack of criminal history and the absence of a bail history were also significant factors. The court determined that the risk to the community was not unacceptable and that there were sufficient conditions that could be imposed to mitigate any potential risks. Given the supportive family environment and the presence of a stable residence, the court concluded that bail should be granted subject to conditions.

The court granted bail with a range of conditions designed to ensure compliance and to mitigate any risks to the community. These conditions included strict reporting obligations, electronic monitoring, and restrictions on contact with certain individuals. The decision was grounded in the statutory provisions of the Bail Act 1977, particularly sections 1B, 3AAA, 4, 4A, 4D, 4E, and 5AAAA, which were considered in the context of the applicant's circumstances and the nature of the alleged offences.

Orders